FAQ - San Diego DUI Attorney
What do police officers look for when searching for drunk drivers on the highways?
The following is a list of symptoms (in descending order of probability) that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
- Turning with a wide radius
- Straddling center of lane marker
- "Appearing to be drunk"
- Almost striking object or vehicle
- Weaving
- Driving on other than designated highway
- Swerving
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Drifting
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately (other than in lane)
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Headlights off
While speeding is not a symptom of DUI, it leads to numerous traffic stops and may result in a DUI case. Most officers, however, note that they will only stop you for speeding if you are ten or more miles per hour over the posted limit. If you have been arrested for drunk driving in San Diego, contact a DUI attorney today!
If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. Please be polite. For example: "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, if you only had a few drinks, saying that you had a few drinks is not incriminating: one or two drinks are usually not sufficient to cause intoxication - and it may explain the odor of alcohol on the breath. This will also make you look honest, which could be very important later in your defense.
Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
No. In California, you have no right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. You will be given the opportunity to contact an attorney immediately after the completion of their paperwork.
What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer's questions
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other "inappropriate" attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
What should I do if I'm asked to take field sobriety tests?
There is a wide-range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, eye test called "horizontal gaze nystagmus" test, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat and others. In California, most officers will use a set battery of six common tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any of the Field Sobriety Tests (FSTs). The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence, which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate and smart. To learn more about refusing Field Sobriety Tests, San Diego residents can speak to a DUI attorney at Kerry Steigerwalt's Pacific Law Center.
Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). If this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the medical community does not accept the test, it is not admissible as evidence in many states. Unfortunately, California allows the test as evidence and it is widely used by law enforcement. The lawyers at San Diego's Kerry Steigerwalt's Pacific Law Center believe it is one of the least reliable tests and a DUI attorney from our firm may be successful in discrediting this test in court.
Should I agree to take a chemical test? What happens if I don't?
The consequence of refusing to submit to a blood, breath or urine test is a twelve-month driver's license suspension.
Generally, there are two adverse results:
- Your driver's license will be suspended for a period of twelve months. This may be true even if you are found not guilty of the DUI charge.
- The fact of refusal can be introduced into evidence as "consciousness of guilt" in your criminal court case. Of course, the defense is free to offer other reasons for the refusal.
Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing. Most attorneys in our firm like their chances for success on a refusal trial, but the twelve-month license suspension is more severe to many people than a DUI conviction.
Do I have a choice of chemical tests?
Yes! When a person is arrested in California for DUI, he is supposed to be given a choice of a breath or a blood test. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems, often rendering them unreliable. The least accurate by far, however, is urinalysis. Thus, if given a choice and if you are confident that you are sober, a blood sample is the wise choice; and a breath test or urine test, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit. A San Diego DUI attorney can answer any further questions you may have regarding chemical tests.
The officer never read me a "Miranda" warning: Can I get my case dismissed?
The officer is supposed to give a Fifth Amendment Miranda Warning after he arrests you. Sometimes, however, they do not. If they fail to give you a Miranda Warning, the consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
The officer took away my copy of my driver's license and served me with a pink temporary license: How can they do that if I'm presumed innocent?
Agreed, it is completely unfair. But the law in California, the "per se" statute, provides for immediate confiscation of the license if the breath test result is above the legal limit or if you refuse to blow.
CAUTION: In California, you must request a DMV hearing within 10 days of your arrest (or the date you were served with a suspension notice). If you fail to request a hearing, you waive your rights to a hearing and your suspension begins thirty days after your arrest. Thus, you should always visit a DUI attorney immediately after you are cited.
Can I represent myself? What can a DUI attorney do for me?
You can represent yourself, but this is rarely done and not recommended. DUI is a very complex area of law with increasingly harsh consequences. There are many complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
An experienced DUI attorney can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension or challenge your case in other ways. All cases are different so it's important that San Diego residents see a DUI attorney as soon as possible.
What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If mouth alcohol is present during a breath test, then the results will be falsely high. This would lead to the wrongful conviction of some drivers. This is because the breath machine assumes that the breath is from the lungs and for complex physiological reasons, its internal computer multiplies the amount of alcohol in your breath by 2100 to obtain your estimated "blood" alcohol level. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact on the BAC reading.
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 to 30 minutes before taking the test could bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca® and Listerine® have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: any alcohol from the blood breathed into the mouthpiece will be multiplied 2100 times. Chewing tobacco or even gum could trap tiny micro particles of alcohol. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense.
Roughly speaking, however, the majority can be broken down into the following areas:
- Driving Defenses: Intoxication is not enough; the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses as to who was the driver of the vehicle.
- Challenge to Probable Cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
- Failure to give Miranda Warning: Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Challenge to Implied Consent Warnings: If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states this may affect admissibility of the test results - as well as the license suspension imposed by the motor vehicle department.
- Challenge to "under the influence": The officer's observations and opinions as to intoxication can be questioned - the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing." Also, witnesses can testify that you appeared to be sober.
- Challenge to Blood-Alcohol Concentration: There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
- Testing During the Absorptive Phase: The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
- Retrograde Extrapolation: This refers to the issue the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance.
- License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.
Consult with a San Diego DUI attorney to learn more about possible defenses.
Will My Car Insurance Increase?
Car insurance companies often will increase premiums after a DUI conviction sometimes by two or three times. While this might be a much higher increase than is mathematically required, there are few laws to regulate the premiums. It is not politically correct to be convicted of DUI and insurance quotes may vary widely from one company to another. Thus, we recommend that you shop around.
